Shavendra not entitled to immunity, argue attorneys for Tamil plaintiffs

[TamilNet, Wednesday, 09 November 2011, 11:56 GMT]Attorneys for two Tamil plaintiffs Tuesday filed a formal response to Sri Lankan ex-Major General Shavendra Silva’s motion to dismiss the war crimes lawsuit against him in the Southern District of New York, and international human rights groups united to urge the United Nations to suspend the credentials of Silva, who is Sri Lanka’s Deputy Permanent Representative to the United Nations. Silva is facing allegations in federal court for war crimes including torture, extrajudicial killing and the intentional shelling of civilians during Sri Lanka’s armed conflict.

“The United Nations has a war criminal within its ranks. This is a moral and legal offense,” said Ali Beydoun, director at American University Washington College of Law’s UNROW Human Rights Impact Litigation Clinic and a Senior Partner at SPEAK Human Rights & Environmental Initiative. “As the largest international body protecting peace and justice, the United Nations has a duty to allow a full investigation into General Silva’s war crimes. Silva should not be allowed to manipulate diplomatic immunity to use it as a shield for his crimes.”

Beydoun is lead counsel in the pending lawsuit against Silva for the extrajudicial killing of a civilian in the Army’s bombing of a hospital and for the torture and extrajudicial killing of a person hors de combat in the final stages of Sri Lanka’s armed conflict.

Shavendra Silva, retired Army General

Arguing that the Court must interpret US statutes in accordance with international law, which necessarily includes jus cogens norms, the attorneys cited, Murray v. Charming Betsy, 6 U.S. 64, 118, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains" and added that the Courts should interpret U.S. law, whenever possible, in a manner consistent with international obligations.

Plaintiffs attorneys argued that International law precludes application of immunity to a defendant accused of torture and war crimes raising the following legal points:

Defendant Silva Bases His Arguments on Instruments that Enjoy a Lower Status in the Normative Hierarchy of International Law

Defendant Silva Invokes the Protection of Principles that Yield to Jus Cogens Norms and Do Not Immunize Him

“Overwhelming evidence showing that the Government of Sri Lanka perpetrated war crimes and crimes against humanity compels the suspension of General Silva’s credentials,” ten human rights organizations including the European Center for Constitutional and Human Rights, Human Rights USA, World Organisation Against Torture (OMCT), Center for Constitutional Rights, TRIAL, the Yale Law School’s Allard K. Lowenstein International Human Rights Clinic, the Campaign Against Criminalising Communities and the Society for Threatened Peoples wrote in a joint letter addressed to Secretary-General Ban Ki-moon. “Permitting General Silva to retain his credentials would send a message to law-breaking governments around the world that the United Nations will not defend the cause of justice and that it will shelter war criminals and perpetrators of mass atrocities,” the letter to Ban Ki Moon further said, as noted by the attorneys in the Press release.

Instead of investigating the war crimes committed by the Sri Lankan Army, the Sri Lankan Government has been sheltering military officers with diplomatic positions. Sri Lanka has posted 22 former high-ranking military officials to diplomatic posts around the world. This has catalyzed international efforts for justice for Tamil victims in Sri Lanka. Litigation similar to the suit against General Silva has sprung up in domestic courts around the world, including Germany, Switzerland and Australia. A global movement for accountability for Sri Lanka’s war criminals is building, a press release issued by SPEAK and American University Washington College of Law UNROW Human Rights Impact Litigation Clinic said.